ONTARIO SUPERIOR COURT OF JUSTICE

Oshawa COURT FILE NO.: FC-06-514-0003
DATE: 2012-04-05

BETWEEN :

WILLIAM HUDGINS

Applicant

— and —

CHRISTINE HUDGINS

Respondent

COUNSEL:

Applicant unrepresented

Ms. Tami Waters for the Respondent

HEARD: March 26, 2012

Shaughnessy J.

REASONS FOR DECISION

[ 1 ] The Respondent, Christine Hudgins brings a motion for an order declaring that the Applicant is a vexatious litigant and from further instituting or continuing any proceedings instituted in any court in Ontario, except with leave of the Regional Senior Judge of the Superior Court of Justice or his/her designate pursuant to s 140(1)(a) to (d) and s. 140(3) of the Courts of Justice Act R.S.O. 1990, c.C. 43 and the Family Law Rules, 2(2), 2(3), and 14(21) O.Reg. 114/99 , as amended.

Background

[ 2 ] The Applicant and Respondent were married on July 3, 1982 and separated on July 13, 2005. There are three adult children of the marriage. The parties were residing in Oshawa Ontario as of the date of separation. The husband commenced proceedings at Whitby, Court File No. 514/06.

Trial Proceedings in Superior Court at Whitby

[ 3 ] While William Hudgins was represented by two counsel over the course of this litigation, he was self- represented at the trial of issues relating to:

(a) an unequal division of net family property in favour of the wife , due to the alleged husband’s reckless depletion of family assets by way of his gambling addiction;

(b) the appropriate equalization payment calculation to be paid by the wife to the husband given that the wife wished to retain the matrimonial home;

(c) the appropriate amount of child support to be paid by the husband for the child Darryl Hudgins, as well as a determination as to whether there should be any retroactive support.

[ 4 ] The trial was held at Whitby, Ontario before Justice Maddalena for four days April 23 to 26, 2007. Justice Maddalena reserved and issued her Reasons for Judgment on June 21, 2007. The final order of the court provided inter alia that:

(a) there be a division of pension at source and a payment of $1,838.45 from husband to the wife related thereto;

(b) the matrimonial home in Oshawa be transferred to the wife and the husband released from any liabilities with respect to the mortgage;

(c) child support for the child Darryl (DOB September 21. 1988) in the amount of $532.00 per month commencing February 1, 2007;

(d) a provision for adjusting child support annually and contributions to s.7 expenses;

(e) a provision that the wife receive a credit for child support payments and the credit applied to the equalization payment calculation;

(f) the wife pay to the husband the sum of $22,748.75 as an equalization payment.

[ 5 ] The Reasons for Judgment of the Trial Judge provides specific findings that;

the husband is a chronic gambler who confessed to ambitions to become a professional gambler. He consistently removed monies from the parties’ line of credit, unknown to the wife, to high interest credit cards, to finance his gambling. I find the threshold contemplated in subsections 5, 6(b), (d) and (h) of the Family Law Act has been met.

[ 6 ] The Trial judge then allowed a set off of $23,512.16 in the equalization payment in favour of the wife. There was also an adjustment for a pension difference in the amount of $1,838.45 in favour of the wife. The trial judge allowed further adjustments to the wife relating to expenses (paragraphs [22], [25] and [26] of the Reasons) and rejected other adjustments claimed by her (paragraphs [23] and [24]).

[ 7 ] The Reasons for Judgment provide a detailed calculation of the equalization payment, as well as the basis for a child support order.

[ 8 ] The parties then made written submissions on costs and Justice Maddalena issued a written decision on costs dated November 1, 2007, wherein the husband was ordered to pay the wife $24,600.00 as costs and which were to be an “offset to the extent they can by the equalization payment owed” by the wife to the husband.

Proceedings in Divisional Court

[ 9 ] The Applicant husband then brought an appeal of this final order before the Divisional Court at Newmarket, Ontario. He states that he was given erroneous advice to do so by court staff in the filing office at Whitby, Ontario.

[ 10 ] On August 30, 2007 the husband appeared before Justice G.P. DiTomaso seeking an order to extend the time to serve and file an Amended Notice of Appeal in the Divisional Court. The request was granted with costs awarded to the wife in the amount of $750.00.

[ 11 ] Thereafter, upon realizing that the appeal had been taken to the wrong court the husband attended before Justice R. Boyko on October 30, 2007. While the application requested a transfer of the appeal to the Court of Appeal in Toronto, nevertheless, Justice Boyko directed that the file be transferred “to the Oshawa duty judge in the Whitby Court House (sic).” The endorsement also states that “Ms. Waters advises court that Mr. Hudgins has failed to perfect Notice of Appeal. Mr Hudgins asks leave to seek leave to perfect appeal (sic).”

[ 12 ] On November 23, 2007 the husband attended before Justice D. Salmers seeking “a mistrial, or examination of the equalization calculation and conspiracy allegations.” Ms. Waters appeared on behalf of the wife. Justice Salmers made the following endorsement:

Mr. Hudgins failed to follow the very clear directions of Justice DiTomaso made on August 30, 2007. He cannot blame court staff for his failure to follow correct procedure. However his misinterpretation of what others told him should not prevent an appeal by him. I do not know what Rule or statute gives me jurisdiction to grant an extension to appeal to the Court of Appeal and Mr. Hudgins and/or Ms. Waters could not assist me in this regard. However, in the interests of justice an extension will be granted.

Respondent has been put to unnecessary expenses by Applicant’s failure to follow the clear directions of DiTomaso J. She is entitled to her costs of preparation and attendances before Boyko J. and today.

Order to go:

(1) Time to perfect appeal extended to January 15/08.

(2) As a condition of (1) Applicant to pay costs ordered of $1,500 for preparation and attendance before Boyko J. and costs of today fixed at $650.

(3) Ms. Waters may take out this order without approval of Applicant, if instructed by her client.

[ 13 ] The husband never perfected the appeal and it was abandoned. Mr. Hudgins states that he did not have the funds to retain a lawyer for the appeal.

[ 14 ] In response to a 14b motion brought by the wife on January 16, 2008 to have the matrimonial home transferred into her name the husband filed an affidavit sworn January 21, 2008, wherein he states inter alia;

(a) the application is a complete fraud and represents collusion between the Respondent’s lawyer Tami L. Waters and Justice T. Maddalena, details of which are provided in emails sent to the Attorney General and the Canadian Judicial Council (attached as “Exhibit A” to the affidavit.) The email makes allegations against Justice Maddalena and the case management judge, Justice M. Scott.

(b) that there are numerous errors in the judgment and a desire to relitigate a number of issues.

(c) an accusation that Justice Salmers in his endorsement was also involved in a “scam” with Ms. Waters.

Motion to Change and other Motions

[ 15 ] The husband then brought a motion to change the Order of Justice Maddalena which came before Justice Salmers on January 25, 2008. Ms. Waters appeared on behalf of the wife. Justice Salmers found that the motion did not meet the urgency or hardship test and the matter was adjourned to a First Appearance date of February 19, 2008 with a direction to fix an expedited case conference date. Justice Salmers’ Order also directed the husband to pay the wife $500.00 in costs.

[ 16 ] A series of motions were then brought by the husband for a variety of relief, most of which related to the motion to change. Both parties had a hearing before Justice Timms on February 5, 2008 wherein he amended the Order of Justice Maddalena and directed:

(1) that the matrimonial home be transferred into the wife’s name, and;

(2) that the husband’s consent was dispensed with for the transfer of the home and the subsequent mortgaging of the home by the wife to the Bank of Montreal in the amount of $19,000.00.

(3) that upon the transfer of the home and the new mortgaging the husband would be released from all liabilities in relation to the matrimonial home.

(4) all other terms of Justice Maddalena’s order remained in effect.

[ 17 ] A motion brought by the wife returnable February 8, 2008, and a motion brought by the husband returnable February 22, 2008, came before Justice Salmers on March 3, 2008. Justice Salmers made the following endorsement on March 3, 2008:

Neither motion has yet been case conferenced. The Applicant’s (husband) motion at tab13 basically requests the same relief same of that (sic) requested on January 25/08 motion before me. That motion has still not had a c.c. (case conference) as was ordered by me. Mr. Hudgins admits that his motions are no longer urgent because he is now receiving his full pay cheque. For these reasons, both of Applicant’s (husband) motions (at tab 13 and at tab 4) are adjourned and shall not be heard until both of these motions have been case conferenced.

Respondent (wife) argues that her motion is urgent because she is repeatedly and unnecessarily brought back to court by the Applicant and the Respondent is incurring unnecessary legal expenses for which she is not compensated in costs by the Applicant.

I agree with the Respondent for the most part.

Applicant (husband) has repeatedly submitted to the court that he intends to appeal the trial judgment, but there is no evidence that this has yet been done almost 9 months after the release of the reasons for judgment.

During that 9 month period the Applicant has repeatedly brought motions that were without jurisdiction because those motions should have been the subject of his appeal that has still not been brought.

There are several outstanding cost orders that the applicant has not paid w/r/t (with respect to) those motions. Applicant complains that Respondent will not accept payments over time for those costs when respondent is under no obligation to do so and no doubt Respondent is in need of money as well.

Now that the Applicant is receiving his full pay cheque, he has no need to bring any further motions until the disposition of the appeal. Respondent should not have to incur further legal costs for unnecessary motions.

Prior to writing this endorsement while in chambers I read the materials filed for today’s motions. Nowhere in these materials could I find a satisfactory explanation by the Applicant of his rejection of the very early c.c. (case conference) dates that had been obtained by Respondent’s counsel as directed by me on Jan. 25/08. If Applicant had agreed to those dates, even his motions could have been dealt with today.

In court today the applicant submitted that he no longer needed a c.c. (case conference). Not only does that show his lack of understanding of the legislation and rules, but coupled together with my Jan. 25/08 order and his repeated refusals to pay costs, he demonstrates that he does not feel bound to follow court orders unless the outcome favours him.

Much court time has been unnecessarily spent on unnecessary motions.

While some of the Respondent’s requested relief shall be granted today, the requests to strike pleadings and for security for costs shall not be heard until those matters have had a c.c. as that relief is not urgent having regard to the order being made today.

For these reasons order to go:

(1) Applicant shall not bring any further motions unless:

(a) a c.c. (case conference) has been held on the motion; and

(b) all costs orders of DiTomaso J., Boyko J., and me have been paid.

(2) All other relief requested re motions at Tabs 4, 11 and 13 is adjourned until a c.c. has been held on those motions.

(3) T.C. (Trial Coordinator) is not to set a c.c. w/r/t (with respect to) Applicant’s motions (Tabs 4 and 13) until Applicant provides T.C. with proof that he has paid all costs ordered by DiTomaso J., Boyko J., and me.

(4) Applicant to pay respondent’s costs of today’s attendance and before Ferguson J. fixed at $1,000.00.

Small Claims Court Proceedings

[ 18 ] The husband then commenced a proceeding against the respondent wife in Brampton Small Claims Court action number SC-09-002672-00 on April 23, 2009. The relief that he sought in the claim was damages in the amount of $10,000.00 for “Harassment, Fraud, Collusion, Theft &/or accomplice to theft, Violation of Privacy Act &/or accomplice, Vandalism &/or accomplice, Bad Faith, accomplice to assault and battery and not limited to the aforementioned.”

[ 19 ] The details of the Small Claims Court claim relate to the matrimonial separation and garnishment of his wages for legal fees. It also alleges inter alia that he has been the victim of harassment, collusion and bad faith at the hands of his “ex” wife; his former lawyers; the Superintendant of Bankruptcy; the Attorney General; Ministry of Community and Social Services; the “Upper Canada Law Society”; “CN Rail (employer) Management” as well as “Unionized & non-unionized employees” and “various business establishments such as restaurants, fitness places, etc whereby my EX’s party contaminated since separation” as well as “four different landlords all contaminated by the ex-wife.”

[ 20 ] Mr. Hudgins filed at the settlement conference in the Small Claims Court proceeding a List of Proposed Witnesses for trial which includes inter alia the name of a judicial secretary, two dentists, a court services clerk, a former lawyer in the matrimonial proceedings, managers of fitness clubs, restaurant managers and employees of a number of restaurants, 16 employees of CN Rail, a Police Constable and Inspector of the Peel Regional Police and a doctor.

[ 21 ] The Small Claims Court proceeding came before Deputy Judge J. Birchnell on August 18, 2009 who made an endorsement dismissing the plaintiff’s action and awarding costs of $600.00 payable by William Hudgins to Christine Hudgins. The endorsement also provided that the plaintiff is not permitted to bring further proceedings in that court forward until the costs had been paid and he had obtained leave of the court. Ms. Waters represented Christine Hudgins in this proceeding.

Family Law Proceeding in Brampton

[ 22 ] William Hudgins then commenced a family law action in Brampton, Ontario, action no. FS-10-68311-00 to re-litigate issues in the matrimonial proceedings. Ms. Waters represented Christine Hudgins in this proceeding. A motion was brought and Justice O’Connor granted a final order dated June 15, 2010 transferring the Brampton action to the Superior Court in Oshawa. The Order provided that William Hudgins was not to bring any further proceedings in Brampton without leave of the court. The Order further provided that the costs of the Respondent Wife fixed in the amount of $2,500.00 were payable by the applicant, and to be enforced through the Family Responsibility Office.

Current Proceedings

[ 23 ] Following the Order of Justice O’Connor of June 15, 2010, the matter came before Justice Hughes on January 6, 2012 as a case conference. In a brief dated December 9, 2011, William Hudgins makes further allegations of fraudulent/fixed court hearings and seeks inter alia to revisit the issues already judicially determined by the Final Order dated June 21, 2007. Justice Hughes adjourned the case conference at the request of counsel for the wife for the purpose of bringing this motion on March 26, 2012 for a declaration that William Hudgins be declared a vexatious litigant and restricting his ability to bring further proceedings without leave of a Regional Senior Judge or his/her designate. The motion was marked peremptory to proceed on March 26, 2012.

[ 24 ] Mr. Hudgins thereafter brought a 14B motion filed March 2, 2012 seeking:

(1) an extension of time to appeal the order of Justice Hughes dated January 6, 2012;

(2) an order compelling the respondent to process orders in a more timely manner;

(3) an order to cancel the upcoming scheduled motion set for March 26, 2012 pending the outcome of the appeal;

(4) an order for costs in the amount of $155.00 to compensate for a vacation day plus filing fees.

[ 25 ] Justice Timms by endorsement dated March 9, 2012, indicated that there could not be an appeal of Justice Hughes’ temporary order without leave being sought, and such leave was not sought. The 14B motion was dismissed and costs of $500.00 were awarded to the Respondent wife payable forthwith.

[ 26 ] William Hudgins filed an affidavit sworn March 16, 2012 in response to this motion. The affidavit states that:

(a) the respondent wife has made “exaggerated statements” in her court documents;

(b) that the Respondent is “out of order by bringing this motion before a case conference is heard and …..is purposely avoiding a case conference”;

(c) that he is asking for a case conference “immediately”;

(d) that the cost awards ordered to the Respondent are “past the statute of limitations”;

(e) that the Respondent does not process the endorsements into orders on a timely basis and seeking an order that if the order is not processed within 10 days then a court staff member should do so without the need for a 14B motion;

(f) that he purchased a “Divorce Application’ in Brampton on February 23, 2010 and the court staff in Brampton took his fees;

(g) that “both the Brampton and Oshawa courthouses have colluded with the Respondent’s party (sic) to deny what [he is] entitled”;

(h) that he requests that the motion be heard as a trial as the matter is complicated and “witnesses need to be heard”;

(i) he recites the history of appealing to the Divisional Court at Newmarket and he seeks costs.

[ 27 ] As of the present date, William Hudgins owes the Respondent $8,379.79 in costs.

[ 28 ] At the hearing of this motion Mr. Hudgins indicated that he required an immediate sale of the matrimonial home and a division of the contents. He stated he also wanted a divorce, a reimbursement of child support. He also claimed that he wanted a determination of who vandalized and placed a GPS on his car. He states that the clerk in Brampton accepted his fee to commence family law proceedings and he should be permitted to proceed. He submits that the cost orders are statute barred. He complains that the trial judge took three months to render her decision in 2007. He also complains about the length of time it has taken the Respondent to have orders taken out. He states that he is being harassed and that he was awakened by phone calls three times the evening prior to this motion. He states that he is troubled by ringing in his ears. He then argued that this motion could not proceed because the issue had not been case conferenced. He maintains that the Respondent has thwarted his ability to obtain justice and that the Respondent has not provided him with a financial statement “in years”.

[ 29 ] Mr. Hudgins in his submissions is aware that Justice Timms transferred the matrimonial home into the Respondent’s name on February 5, 2008, but he disputes the court’s ability to do so. He reiterates the procedural irregularity in appealing to the Divisional Court at Newmarket, and then states that he did not have the money to continue an appeal before the Court of Appeal in Toronto. He argues a number of issues that relate to an appeal such as a lack of consideration of credit card debt not accounted for at the trial. He claims that his wife and the “bank” have been acting in collusion to force him into bankruptcy.

[ 30 ] Mr. Hudgins stated on several occasions that he would like to have a trial of this matter wherein he could cross-examine the Respondent and call witnesses to testify. In relation to one of the documents filed as an Exhibit to the Respondent’s affidavit, the List of Proposed Witnesses for trial, in the Brampton Small Claims Court proceeding (referred to at paragraph [20] above) Mr. Hudgins stated that he was “glad they kept it ….I may need it in the future---there are a vast number of people assisting her (the Respondent) to keep this doomed marriage alive and I need a Divorce and my money.” This statement is a clear indication that Mr. Hudgins fully intends to continue to litigate issues already determined by the court.

The Law

[ 31 ] Section 140(1) of the Courts of Justice Act R.S.O. 1990, c.C-43; 1996, c.25,s.9(17),provides that where a Superior Court of Justice is satisfied that a person has persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner, then the judge may order:

(1) that no further proceedings be instituted by the person in any court or;

(2) in the event that proceedings have been previously instituted by the person in any court those proceedings shall not be continued

except by leave of a Judge of the Superior Court of Justice.

[ 32 ] In Lang Michener and Fabian, (1987) , 59 O.R. (2d) 353 at para 19 , Justice Henry considered a number of judicial decisions and summarized the principles relating to vexatious proceedings as follows:

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding ;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether the proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause;

(f) the failure of the person instituting the proceeding to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

(g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

[ 33 ] The Court has a broad jurisdiction under s. 140 of the Courts of Justice Act . The Court of Appeal has stated that orders requiring a litigant to seek leave to continue with proceedings or to institute new proceedings in any court includes appeals to their court. Only the order declaring the litigant to be vexatious is appealable as of right pursuant to section 6(1) (b) of the Courts of Justice Act. ( Kallaba v Bylykbashi , , [2006] O.J. No. 545 (C.A.). Further an Order of vexatious litigant can include the staying of actions, whether by way of further motion, appeals or other step, until outstanding cost orders are paid. ( Landmark Vehicle Leasing v. Marino , 2011 ONSC 1671 para. 47 ).

[ 34 ] The importance of the application of section 140(1) in matrimonial proceedings was delineated by the Court of Appeal in Ballentine v Ballentine (2003), , 65 O.R. (3d) 481 (C.A.) para 39 :

It allows the court to make an order prohibiting a person who has persistently and unreasonably instituted vexatious litigation from instituting further legal proceedings without leave of the court. This is particularly important in family law matters, given the availability of variation orders for support and custody….without some mechanism to prevent abuse, a party could bring an endless stream of variation applications, with a new one launched as soon as the last one has been denied….accordingly, initiating new court proceedings could become a form of harassment of one’s former spouse. Section 140 of the CJA is a mechanism to prevent such abuse [citations omitted].

Analysis

[ 35 ] Mr. Hudgins, in the course of the matrimonial litigation, has instituted a multiplicity of various types of actions and motions which I have summarized above. He has continued to commence and recommence proceedings in which he has been repeatedly unsuccessful and for which he was required to pay costs. Mr. Hudgins dismisses the legitimacy of the cost awards maintaining that they are “statute barred”, yet he did not dispute the quantum of costs claimed as of the present time in the amount of $8,379.79. His affidavit and submissions before me indicate that he has no intention of paying the costs. Some of the costs have been collected slowly by the Family Responsibility Office, through wage garnishment. There is no reason to think that William Hudgins will honour future cost orders.

[ 36 ] In addition to the unpaid cost orders, it should also be noted that Christine Hudgins continues to miss a significant amount of time from work to attend court proceedings initiated by William Hudgins.

[ 37 ] William Hudgins’ conduct over the past several years meets the principles and criteria detailed in the Lang Michener and Fabian case supra (paragraph [32] above). I find that William Hudgins has persistently and without reasonable grounds, instituted vexatious proceedings in the Superior Court at Oshawa and Brampton, and in the Small Claims Court in Brampton. He has engaged in litigation and brought repeated proceedings against Christine Hudgins, the vast majority of which has been unsuccessful. He has refused to pay the costs of those proceedings. He has attempted to relitigate and appeal matters unsuccessfully on multiple occasions. His behaviour is worsening over time as he has expanded the scope to include restaurant managers and staff, the employer of him and Christine Hudgins and their fellow employees, court staff, judges, government institutions and lawyers. Significantly, as detailed in paragraph [30] above, Mr. Hudgins has expressed his desire to continue litigating into the future.

[ 38 ] I conclude that William Hudgins, throughout the past several years, has instituted the various proceedings to harass and oppress Christine Hudgins.

[ 39 ] Accordingly, I find that it is appropriate to make an order declaring William Hudgins to be a vexatious litigant and to impose terms on him.

Terms of the Order

[ 40 ] It is hereby ordered and directed that no action, originating process, proceeding, motion or appeal of any kind may be continued or instituted by William Hudgins, directly or indirectly in any Court in Ontario except with leave of the Regional Senior Judge of the Superior Court of Justice or his/her designate pursuant to s. 140(3) of the Courts of Justice Act .

[ 41 ] It is further ordered that any application for leave made by William Hudgins pursuant to s. 140(3) of the Courts of Justice Act , shall be in writing and sent by registered mail to the Regional Senior Judge and which shall be accompanied by an affidavit that outlines the merits of the proposed proceeding or step, and a copy of this Order. The application and affidavit shall not exceed ten (10) pages in length. The application for leave will be determined by the Regional Senior Judge or his/her designate.

[ 42 ] In the event that William Hudgins commences any proceeding or continues any proceeding without first obtaining an Order granting him leave to do so, the proceeding shall be immediately stayed upon the filing of a copy of this Order with the Court in which such proceeding was commenced.

[ 43 ] There will also be an Order that the approval of form and content of this Order by William Hudgins is dispensed with.

[ 44 ] The parties shall make written submissions on costs, not to exceed five pages in length. Ms.Waters shall deliver her submissions within two weeks of the receipt of these Reasons. Mr. Hudgins shall deliver his written submissions on costs within two weeks of receiving Ms. Waters’ submissions. Ms. Waters will then have one week thereafter to reply.

The Honourable Mr. Justice Bryan Shaughnessy

DATE RELEASED: April 5, 2012